BILL REQ. #:  H-3598.1 

Prefiled 12/31/2003. Read first time 01/12/2004.   Referred to Committee on Health Care.

     AN ACT Relating to the uniform disciplinary act for health professions; amending RCW 18.130.050, 18.130.060, 18.130.080, 18.130.090, 18.130.160, 18.130.170, and 18.130.172; adding a new section to chapter 18.130 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The uniform disciplinary act provides a uniform process for addressing acts of unprofessional conduct affecting fifty-seven health professions regulated by the state. The disciplinary authorities include the secretary of health and sixteen boards and commissions charged with protecting the health and safety of patients from unprofessional conduct. It is recognized nationally as a model law and has worked well over time to provide uniformity and efficiency to the disciplinary process.
     The legislature finds that it is necessary to further streamline the disciplinary process and ensure more equitable case dispositions among health care providers. An efficient division of responsibilities between the secretary of health with authority over preliminary complaint investigations and charging decisions reserved to the health professionals sitting on the boards and commissions as the final authority on case dispositions. Further, the creation of statutorily mandated sanctions for certain acts of unprofessional conduct will ensure a fair and uniform disposition of the most severe cases that threaten the public. These measures will ensure that investigations and charging decisions are free of any potential conflicts of interest and that sanctions are uniform across professional lines.

Sec. 2   RCW 18.130.050 and 1995 c 336 s 4 are each amended to read as follows:
     The disciplining authority has the following authority:
     (1) To adopt, amend, and rescind such rules as are deemed necessary to carry out this chapter;
     (2) To ((investigate)) provide consultation and assistance with investigations of all complaints or reports of unprofessional conduct as defined in this chapter as requested by the secretary and to hold hearings as provided in this chapter;
     (3) To issue subpoenas and administer oaths in connection with any investigation, hearing, or proceeding held under this chapter;
     (4) To take or cause depositions to be taken and use other discovery procedures as needed in any investigation, hearing, or proceeding held under this chapter;
     (5) To compel attendance of witnesses at hearings;
     (6) In the course of ((investigating)) consulting and assisting with the investigation of a complaint or report of unprofessional conduct, to conduct practice reviews as requested by the secretary;
     (7) ((To take emergency action ordering summary suspension of a license, or restriction or limitation of the licensee's practice pending proceedings by the disciplining authority;
     (8))) To use a presiding officer as authorized in RCW 18.130.095(3) or the office of administrative hearings as authorized in chapter 34.12 RCW to conduct hearings. The disciplining authority shall make the final decision regarding disposition of the license unless the disciplining authority elects to delegate in writing the final decision to the presiding officer;
     (((9))) (8) To use individual members of the boards to ((direct)) provide consultation and assistance with investigations as requested by the secretary. However, the member of the board shall not subsequently participate in the hearing of the case;
     (((10))) (9) To enter into contracts for professional services determined to be necessary for adequate enforcement of this chapter;
     (((11))) (10) To contract with licensees or other persons or organizations to provide services necessary for the monitoring and supervision of licensees who are placed on probation, whose professional activities are restricted, or who are for any authorized purpose subject to monitoring by the disciplining authority;
     (((12))) (11) To adopt standards of professional conduct or practice;
     (((13))) (12) To grant or deny license applications, and in the event of a finding of unprofessional conduct by an applicant or license holder, to impose any sanction against a license applicant or license holder provided by this chapter;
     (((14))) (13) To designate individuals authorized to sign subpoenas and statements of charges;
     (((15))) (14) To establish panels consisting of three or more members of the board to perform any duty or authority within the board's jurisdiction under this chapter;
     (((16))) (15) To review and audit the records of licensed health facilities' or services' quality assurance committee decisions in which a licensee's practice privilege or employment is terminated or restricted. Each health facility or service shall produce and make accessible to the disciplining authority the appropriate records and otherwise facilitate the review and audit. Information so gained shall not be subject to discovery or introduction into evidence in any civil action pursuant to RCW 70.41.200(3).

Sec. 3   RCW 18.130.060 and 2001 c 101 s 1 are each amended to read as follows:
     In addition to the authority specified in RCW 18.130.050, the secretary has the following additional authority:
     (1) To employ such investigative, administrative, and clerical staff as necessary for the enforcement of this chapter;
     (2) Upon the request of a board, to appoint pro tem members to participate as members of a panel of the board in connection with proceedings specifically identified in the request. Individuals so appointed must meet the same minimum qualifications as regular members of the board. Pro tem members appointed for matters under this chapter are appointed for a term of no more than one year. No pro tem member may serve more than four one-year terms. While serving as board members pro tem, persons so appointed have all the powers, duties, and immunities, and are entitled to the emoluments, including travel expenses in accordance with RCW 43.03.050 and 43.03.060, of regular members of the board. The chairperson of a panel shall be a regular member of the board appointed by the board chairperson. Panels have authority to act as directed by the board with respect to all matters ((concerning the review, investigation, and adjudication of all complaints, allegations, charges, and matters)) subject to the jurisdiction of the board or commission. The authority to act through panels does not restrict the authority of the board to act as a single body at any phase of proceedings within the board's jurisdiction. Board panels may ((make interim orders and)) issue final orders and decisions with respect to matters and cases delegated to the panel by the board. Final decisions may be appealed as provided in chapter 34.05 RCW, the Administrative Procedure Act;
     (3) To establish fees to be paid for witnesses, expert witnesses, and consultants used in any investigation and to establish fees to witnesses in any agency adjudicative proceeding as authorized by RCW 34.05.446;
     (4) To conduct investigations and practice reviews ((at the direction of the disciplining authority)) and to issue subpoenas, administer oaths, and take depositions in the course of conducting those investigations and practice reviews at the direction of the disciplining authority;
     (5) To review results of investigations and determine the appropriate disposition, which may include closure, notice of correction, stipulations permitted by RCW 18.130.172, or issuance of a statement of charges;
     (6) To take emergency action ordering summary suspension of a license, or restriction or limitation of the licensee's practice pending proceedings by the disciplining authority;
     (7) To have the health professions regulatory program establish a system to recruit potential public members, to review the qualifications of such potential members, and to provide orientation to those public members appointed pursuant to law by the governor or the secretary to the boards and commissions specified in RCW 18.130.040(2)(b), and to the advisory committees and ((councils)) for professions specified in RCW 18.130.040(2)(a).

Sec. 4   RCW 18.130.080 and 1998 c 132 s 9 are each amended to read as follows:
     A person, including but not limited to consumers, licensees, corporations, organizations, health care facilities, impaired practitioner programs, or voluntary substance abuse monitoring programs approved by disciplining authorities, and state and local governmental agencies, may submit a written complaint to the ((disciplining authority)) secretary charging a license holder or applicant with unprofessional conduct and specifying the grounds therefor or to report information to the ((disciplining authority)) secretary, or voluntary substance abuse monitoring program, or an impaired practitioner program approved by the ((disciplining authority)) secretary, which indicates that the license holder may not be able to practice his or her profession with reasonable skill and safety to consumers as a result of a mental or physical condition. If the ((disciplining authority)) secretary determines that the complaint merits investigation, or if the ((disciplining authority)) secretary has reason to believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the ((disciplining authority)) secretary shall investigate to determine whether there has been unprofessional conduct. A person who files a complaint or reports information under this section in good faith is immune from suit in any civil action related to the filing or contents of the complaint.

Sec. 5   RCW 18.130.090 and 1993 c 367 s 1 are each amended to read as follows:
     (1) If the ((disciplining authority)) secretary determines, upon investigation, that there is reason to believe a violation of RCW 18.130.180 has occurred, a statement of charge or charges shall be prepared and served upon the license holder or applicant at the earliest practical time. The statement of charge or charges shall be accompanied by a notice that the license holder or applicant may request a hearing to contest the charge or charges. The license holder or applicant must file a request for hearing with the disciplining authority within twenty days after being served the statement of charges. If the twenty-day limit results in a hardship upon the license holder or applicant, he or she may request for good cause an extension not to exceed sixty additional days. If the disciplining authority finds that there is good cause, it shall grant the extension. The failure to request a hearing constitutes a default, whereupon the disciplining authority may enter a decision on the basis of the facts available to it.
     (2) If a hearing is requested, the time of the hearing shall be fixed by the disciplining authority as soon as convenient, but the hearing shall not be held earlier than thirty days after service of the charges upon the license holder or applicant.

Sec. 6   RCW 18.130.160 and 2001 c 195 s 1 are each amended to read as follows:
     Upon a finding, after hearing, that a license holder or applicant has committed unprofessional conduct or is unable to practice with reasonable skill and safety due to a physical or mental condition, the disciplining authority may issue an order providing for one or any combination of the following:
     (1) Revocation of the license;
     (2) Suspension of the license for a fixed or indefinite term;
     (3) Restriction or limitation of the practice;
     (4) Requiring the satisfactory completion of a specific program of remedial education or treatment;
     (5) The monitoring of the practice by a supervisor approved by the disciplining authority;
     (6) Censure or reprimand;
     (7) Compliance with conditions of probation for a designated period of time;
     (8) Payment of a fine for each violation of this chapter, not to exceed five thousand dollars per violation. Funds received shall be placed in the health professions account;
     (9) Denial of the license request;
     (10) Corrective action;
     (11) Refund of fees billed to and collected from the consumer;
     (12) A surrender of the practitioner's license in lieu of other sanctions, which must be reported to the federal data bank.
     Except as otherwise provided in section 9 of this act, any of the actions under this section may be totally or partly stayed by the disciplining authority. In determining what action is appropriate, the disciplining authority must first consider what sanctions are necessary to protect or compensate the public. Only after such provisions have been made may the disciplining authority consider and include in the order requirements designed to rehabilitate the license holder or applicant. All costs associated with compliance with orders issued under this section are the obligation of the license holder or applicant.
     The licensee or applicant may enter into a stipulated disposition of charges that includes one or more of the sanctions of this section, but only after a statement of charges has been issued and the licensee has been afforded the opportunity for a hearing and has elected on the record to forego such a hearing. The stipulation shall either contain one or more specific findings of unprofessional conduct or inability to practice, or a statement by the licensee acknowledging that evidence is sufficient to justify one or more specified findings of unprofessional conduct or inability to practice. The stipulation entered into pursuant to this subsection shall be considered formal disciplinary action for all purposes.

Sec. 7   RCW 18.130.170 and 1995 c 336 s 8 are each amended to read as follows:
     (1) If the ((disciplining authority)) secretary believes a license holder or applicant may be unable to practice with reasonable skill and safety to consumers by reason of any mental or physical condition, a statement of charges in the name of the ((disciplining authority)) secretary shall be served on the license holder or applicant and notice shall also be issued providing an opportunity for a hearing. The hearing shall be limited to the sole issue of the capacity of the license holder or applicant to practice with reasonable skill and safety. If the disciplining authority determines that the license holder or applicant is unable to practice with reasonable skill and safety for one of the reasons stated in this subsection, the disciplining authority shall impose such sanctions under RCW 18.130.160 as is deemed necessary to protect the public.
     (2)(a) In investigating or adjudicating a complaint or report that a license holder or applicant may be unable to practice with reasonable skill or safety by reason of any mental or physical condition, the ((disciplining authority)) secretary may require a license holder or applicant to submit to a mental or physical examination by one or more licensed or certified health professionals designated by the ((disciplining authority)) secretary. The license holder or applicant shall be provided written notice of the ((disciplining authority's)) secretary's intent to order a mental or physical examination, which notice shall include: (i) A statement of the specific conduct, event, or circumstances justifying an examination; (ii) a summary of the evidence supporting the ((disciplining authority's)) secretary's concern that the license holder or applicant may be unable to practice with reasonable skill and safety by reason of a mental or physical condition, and the grounds for believing such evidence to be credible and reliable; (iii) a statement of the nature, purpose, scope, and content of the intended examination; (iv) a statement that the license holder or applicant has the right to respond in writing within twenty days to challenge the ((disciplining authority's)) secretary's grounds for ordering an examination or to challenge the manner or form of the examination; and (v) a statement that if the license holder or applicant timely responds to the notice of intent, then the license holder or applicant will not be required to submit to the examination while the response is under consideration.
     (b) Upon submission of a timely response to the notice of intent to order a mental or physical examination, the license holder or applicant shall have an opportunity to respond to or refute such an order by submission of evidence or written argument or both. The evidence and written argument supporting and opposing the mental or physical examination shall be reviewed by either a panel of the disciplining authority members who have not been involved with the allegations against the license holder or applicant or a neutral decision maker approved by the disciplining authority. The reviewing panel of the disciplining authority or the approved neutral decision maker may, in its discretion, ask for oral argument from the parties. The reviewing panel of the disciplining authority or the approved neutral decision maker shall prepare a written decision as to whether: There is reasonable cause to believe that the license holder or applicant may be unable to practice with reasonable skill and safety by reason of a mental or physical condition, or the manner or form of the mental or physical examination is appropriate, or both.
     (c) Upon receipt by the ((disciplining authority)) secretary of the written decision, or upon the failure of the license holder or applicant to timely respond to the notice of intent, the ((disciplining authority)) secretary may issue an order requiring the license holder or applicant to undergo a mental or physical examination. All such mental or physical examinations shall be narrowly tailored to address only the alleged mental or physical condition and the ability of the license holder or applicant to practice with reasonable skill and safety. An order of the ((disciplining authority)) secretary requiring the license holder or applicant to undergo a mental or physical examination is not a final order for purposes of appeal. The cost of the examinations ordered by the ((disciplining authority)) secretary shall be paid out of the health professions account. In addition to any examinations ordered by the ((disciplining authority)) secretary, the licensee may submit physical or mental examination reports from licensed or certified health professionals of the license holder's or applicant's choosing and expense.
     (d) If the disciplining authority finds that a license holder or applicant has failed to submit to a properly ordered mental or physical examination, then the disciplining authority may order appropriate action or discipline under RCW 18.130.180(9), unless the failure was due to circumstances beyond the person's control. However, no such action or discipline may be imposed unless the license holder or applicant has had the notice and opportunity to challenge the ((disciplining authority's)) secretary's grounds for ordering the examination, to challenge the manner and form, to assert any other defenses, and to have such challenges or defenses considered by either a panel of the disciplining authority members who have not been involved with the allegations against the license holder or applicant or a neutral decision maker approved by the disciplining authority, as previously set forth in this section. Further, the action or discipline ordered by the disciplining authority shall not be more severe than a suspension of the license, certification, registration or application until such time as the license holder or applicant complies with the properly ordered mental or physical examination.
     (e) Nothing in this section shall restrict the power of ((a disciplining authority)) the secretary to act in an emergency under RCW 34.05.422(4), 34.05.479, and ((18.130.050(7))) 18.130.060(6).
     (f) A determination by a court of competent jurisdiction that a license holder or applicant is mentally incompetent or mentally ill is presumptive evidence of the license holder's or applicant's inability to practice with reasonable skill and safety. An individual affected under this section shall at reasonable intervals be afforded an opportunity, at his or her expense, to demonstrate that the individual can resume competent practice with reasonable skill and safety to the consumer.
     (3) For the purpose of subsection (2) of this section, an applicant or license holder governed by this chapter, by making application, practicing, or filing a license renewal, is deemed to have given consent to submit to a mental, physical, or psychological examination when directed in writing by the ((disciplining authority)) secretary and further to have waived all objections to the admissibility or use of the examining health professional's testimony or examination reports by the ((disciplining authority)) secretary on the ground that the testimony or reports constitute privileged communications.

Sec. 8   RCW 18.130.172 and 2000 c 171 s 29 are each amended to read as follows:
     (1) Except for those acts of unprofessional conduct specified in section 9 of this act, prior to serving a statement of charges under RCW 18.130.090 or 18.130.170, the ((disciplinary authority)) secretary may furnish a statement of allegations to the licensee or applicant along with a detailed summary of the evidence relied upon to establish the allegations and a proposed stipulation for informal resolution of the allegations. These documents shall be exempt from public disclosure until such time as the allegations are resolved either by stipulation or otherwise.
     (2) The ((disciplinary authority)) secretary and the applicant or licensee may stipulate that the allegations may be disposed of informally in accordance with this subsection. The stipulation shall contain a statement of the facts leading to the filing of the complaint; the act or acts of unprofessional conduct alleged to have been committed or the alleged basis for determining that the applicant or licensee is unable to practice with reasonable skill and safety; a statement that the stipulation is not to be construed as a finding of either unprofessional conduct or inability to practice; an acknowledgement that a finding of unprofessional conduct or inability to practice, if proven, constitutes grounds for discipline under this chapter; and an agreement on the part of the licensee or applicant that the sanctions set forth in RCW 18.130.160, except RCW 18.130.160 (1), (2), (6), and (8), may be imposed as part of the stipulation, except that no fine may be imposed but the licensee or applicant may agree to reimburse the ((disciplinary authority)) secretary the costs of investigation and processing the complaint up to an amount not exceeding one thousand dollars per allegation; and an agreement on the part of the ((disciplinary authority)) secretary to forego further disciplinary proceedings concerning the allegations. A stipulation entered into pursuant to this subsection shall not be considered formal disciplinary action.
     (3) If the licensee or applicant declines to agree to disposition of the charges by means of a stipulation pursuant to subsection (2) of this section, the ((disciplinary authority)) secretary may proceed to formal disciplinary action pursuant to RCW 18.130.090 or 18.130.170.
     (4) Upon execution of a stipulation under subsection (2) of this section by both the licensee or applicant and the ((disciplinary authority)) secretary, the complaint is deemed disposed of and shall become subject to public disclosure on the same basis and to the same extent as other records of the ((disciplinary authority)) secretary. Should the licensee or applicant fail to pay any agreed reimbursement within thirty days of the date specified in the stipulation for payment, the ((disciplinary authority)) secretary may seek collection of the amount agreed to be paid in the same manner as enforcement of a fine under RCW 18.130.165.

NEW SECTION.  Sec. 9   A new section is added to chapter 18.130 RCW to read as follows:
     (1) In addition to any other sanction specified in RCW 18.130.160 that the disciplining authority deems appropriate to protect or compensate the public or rehabilitate a license holder or applicant, a license holder or applicant that is the subject of any finding by the disciplining authority that determines that he or she has committed any of the following acts of unprofessional conduct for the first time is subject to at least the following sanctions:
     (a) Any act defined in RCW 18.130.180(4) that causes the death of or severe injury to a patient or creates a significant risk of harm to the public shall result in the suspension of the license for at least two years;
     (b) Any act defined in RCW 18.130.180(6) shall result in the suspension of the license for at least six months;
     (c) Any act defined in RCW 18.130.180(7) that causes the death of or severe injury to a patient or creates a significant risk of harm to the public shall result in the suspension of the license for at least two years;
     (d) Any act defined in RCW 18.130.180(17) shall result in the suspension of the license for at least six months;
     (e) Any act defined in RCW 18.130.180(23) that causes the death of or severe injury to a patient or creates a significant risk of harm to the public shall result in the suspension of the license for at least two years;
     (f) Any act of abuse to a client or patient as defined in RCW 18.130.180(24) shall result in the suspension of the license for at least one year; and
     (g) Any sexual contact with a client or patient as defined in RCW 18.130.180(24) where the client or patient did not consent shall result in the suspension of the license for at least one year.
     (2) In addition to any other sanction specified in RCW 18.130.160 that the disciplining authority deems appropriate to protect or compensate the public or rehabilitate a license holder or applicant, a license holder or applicant that is the subject of any finding by the disciplining authority that determines that he or she has committed any of the following acts of unprofessional conduct for the second time within a ten-year period is subject to at least the following sanctions:
     (a) Any act defined in RCW 18.130.180(4) that causes the death of or severe injury to a patient or creates a significant risk of harm to the public shall result in the revocation of the license for at least five years;
     (b) Any act defined in RCW 18.130.180(6) shall result in the suspension of the license for at least two years;
     (c) Any act defined in RCW 18.130.180(7) that causes the death of or severe injury to a patient or creates a significant risk of harm to the public shall result in the revocation of the license for at least five years;
     (d) Any conviction defined in RCW 18.130.180(17) shall result in the suspension of the license for at least two years;
     (e) Any act defined in RCW 18.130.180(23) that causes the death of or severe injury to a patient or creates a significant risk of harm to the public shall result in the suspension of the license for at least five years;
     (f) Any act of abuse to a client or patient as defined in RCW 18.130.180(24) shall result in the suspension of the license for at least three years; and
     (g) Any sexual contact with a client or patient as defined in RCW 18.130.180(24) where the client or patient did not consent shall result in the suspension of the license for at least three years.
     (3) The disciplining authority shall revoke the license of any license holder that has any combination of three findings within a ten-year period that he or she has committed any of the acts of unprofessional conduct specified in subsections (1) and (2) of this section.
     (4)(a) The sanctions specified in subsections (1) and (2) of this section may be adjusted or stayed and the specific finding deemed exempt from the compounding provisions of this section upon issuance of a finding of the presence of any of the following mitigating circumstances:
     (i) For subsections (1)(a) and (2)(a) of this section, the act involved a high-risk procedure, there was no lower-risk alternative to that procedure, the patient was aware of the risks of the procedure, and prior to the institution of disciplinary actions the license holder took appropriate remedial measures;
     (ii) There is a strong potential for rehabilitation of the license holder; or
     (iii) There is a strong potential for remedial education and training to prevent future harm to the public.
     (b) A finding of mitigating circumstances for an act of unprofessional conduct specified in this section may only be issued and applied one time for any license holder. After a finding of mitigating circumstances is issued and applied, no subsequent findings under this section may consider any mitigating circumstances.
     (c) A finding of mitigating circumstances for an act of unprofessional conduct specified in this section may be issued and applied one time for any applicant. Such a finding as an applicant does not preclude the individual from obtaining a later finding of mitigating circumstances as provided under this subsection (4) and applicable to license holders.
     (5) Nothing in this section limits the disciplining authority from imposing any sanction that it determines is necessary to protect or compensate the public for any act of unprofessional conduct other than those listed in subsections (1) and (2) of this section.